Reduction of mandatory suspensions for doping breaches: the strange case of Dr Johnson and the FA

The Regulatory Commission of the FA has published its reasons in the case of FA and Dr Andrew Johnson. The case is significant for two reasons: it shows the operation of Regulation 7 of the FA Anti-Doping Regulations in practice, and it sheds light on the Regulatory Commission’s approach to applications to reduce mandatory suspensions for doping breaches.

Dr Johnson was the part time doctor for Bury FC during the 2018/2019 football season. In April 2019 he provided fraudulent information to the Anti-Doping Organisation in the form of an application for a retrospective Therepeutic Use Exemption (“TUE”) for a player that had been falsely backdated. He did this – by his own admission – to cover up the fact that he had intended to submit the application on behalf of the player in December 2018 but had forgotten.

The application involved two elements of dishonesty. Dr Johnson signed a letter falsely stating that the TUE form had been filled in and posted in December 2018, and attached a photocopy of a purported December 2018 dated form with his signature.

Unfortunately for Dr Johnson the deception was almost immediately spotted: the TUE application form used by UKAD changed between December 2018 and April 2019; Dr Johnson’s purported ‘old’ form was filled in on a new version that wasn’t available in December 2018. He did not deny the deception, and accepted a breach of Regulation 7 of the Anti-Doping Regulations.

Regulation 7 states as follows (as far as is relevant here):

(a) Tampering or Attempted Tampering with any part of a Doping Control by a Participant is prohibited. Tampering is conduct which subverts the Doping Control process but which would not otherwise be included in the definition of Prohibited Methods. Tampering shall include… providing fraudulent information to an Anti-Doping Organisation.

The penalties attached to a breach of Regulation 7 are to be found in Regulation 52. Regulation 52 sets out a four year mandatory suspension for any breach. The only possibility for any reduction of that period is under the ADR Part Eight, which provides for ‘Reduction of penalties for exceptional or specific circumstances’. It was agreed at the hearing that the only relevant Regulation in Part Eight was Regulation 72, which reads as follows in respect of a person who faces a four year mandatory suspension under Regulation 7:

‘[that person] may, by promptly admitting the asserted Anti-Doping Rule Violation after being confronted by Anti-Doping Organisation, and also upon the approval and at the discretion of both WADA and the [Football] Association, receive a reduction in the period of suspension down to a minimum of two years, depending on the seriousness of the violation and the Participant’s degree of fault’.

The Regulatory Commission’s approach to Regulation 72 is not straightforward in its written reasons. It’s analysis begins with the finding that Regulation 72 required a favourable decision from three separate bodies before a participant can receive any reduction: WADA, the FA, and the Regulatory Commission itself. The FA’s position at the hearing was that because the FA and WADA did not consider it appropriate to exercise the discretion under Regulation 72, no reduction was possible. This appears to be a logical reading of the Regulation.

The Commission disagreed. It found that whilst the Regulatory Commission ‘can make no binding decision to reduce a suspension’ without approval by WADA and the FA, ‘it is the responsibility of a Regulatory Commission to consider all the evidence and submissions and express its independent view under Regulation 72’. In other words, the Regulatory Commission might decide, against the views of the FA and WADA, to impose a reduction. This seems to be an imaginative reading of the Regulation, which allows a reduction explicitly ‘upon the approval of both WADA and the FA’.

The Commission went on to consider the application of Regulation 72 to Dr Johnson’s case. It found it to be a ‘serious violation, however much one can identify or describe more serious cases’. Whilst it was a single incident, and not a scheme intended to achieve competitive advantage for player, any false information of the type submitted by Dr Johnson was ‘seriously undermining of the WADA anti-doping regime’. Having asserted it’s power to disagree with the FA and WADA, it agreed with them both that no reduction should be made from the mandatory four years suspension.

The case is significant because it demonstrates the robustness of the Regulatory Commission’s approach in doping cases in two respects. First, breaches that were not intended to confer any competitive advantage may still be of sufficient seriousness to attract the mandatory four year suspension. Second, the Regulatory Commission may ignore the view of the FA and WADA in deciding whether to reduce penalties for doping breaches. Whilst this interpretation of Regulation 72 seems something of a stretch, it remains to be seen whether it will survive future scrutiny.

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